Terms of Service
1. Agreement
These General Terms and Conditions for IoT Services and any additional attachments, if any (the “Agreement”), which will be deemed an integral part hereof for all purposes, when attached to or referenced in the Order Form properly filled out and duly executed by CUSTOMER and Overdrive IoT, will constitute an agreement entered into between CUSTOMER and Overdrive IoT for the provision of IoT Services (for purposes of this Agreement, the “IoT Services” or the “Services”).
2. Scope
2.1 IoT Services shall be offered to CUSTOMER by Overdrive IoT to fulfill the Services specified in the Order Form.
2.2 Overdrive IoT shall have the obligations to, through itself or the affiliates of Overdrive IoT Pte Ltd, activate IoT Services for CUSTOMER when this Agreement takes into full effect.
2.3 IoT Services include but not limited to IoT SIM card and its corresponding configuration, IoT hardware, IoT software and/or connectivity management platform. Upon business needs, these Services can be activated or purchased when corresponding applications made by the CUSTOMER match all application requirements set forth by Overdrive IoT.
2.4 All IoT SIM cards provided by Overdrive IoT are activated with a free public Access Point Name (“APN”) by default. If dedicated APN, dedicated leased line or circuit, such as IPsec or MPLS, etc. is required by CUSTOMER to access to IoT dedicated network and CUSTOMER’s application portal on the platform, all associated one-off fees and monthly fees shall be paid by CUSTOMER.
2.5 CUSTOMER shall be responsible for all components of industry-specific applications or aggregated system including industry-specific control center and terminal equipment, whereas Overdrive IoT shall only be responsible for IoT Services network.
2.6 The Parties agree that in the event of network fault or technical difficulties, which are extraordinarily difficult to avoid, exclude or resolve that may cause communications problems or inconvenience, this will not constitute a breach of this Agreement. Overdrive IoT, however, will attempt its best endeavors to resolve the incident in a timely manner.
2.7 CUSTOMER acknowledges that mobile signal, data throughput and network latency of IoT Services are not guarantee and they are subject to actual environment, geographical and other relevant factors.
2.8 All equipment utilized by Overdrive IoT or the affiliates of Overdrive IoT Pte Ltd including IoT Services special wireless terminal and industry-specific application control center are in compliance with the technical requirements by CUSTOMER, of which safety and stability are guaranteed that no adverse impact on CUSTOMER’s network will be caused in relevant processes. In case of failure that leads to the inability to perform IoT Services and such failure is caused by the fault of CUSTOMER’s equipment, this will not constitute any liabilities for Overdrive IoT, while CUSTOMER shall continue to settle payment for the subscription to IoT Services in accordance with this Agreement.
2.9 Overdrive IoT reserves the rights to make any changes to the IoT Services during the term, while Overdrive IoT will, through itself or the affiliates of Overdrive IoT Pte Ltd, notify CUSTOMER by written notice. Any disagreement must be raised by written notification to Overdrive IoT no later than fifteen (15) days after the issue date of the written notice, or CUSTOMER will be treated as agreeing with all changes made. Once disagreement is raised, the Parties shall negotiate in good faith to reach mutual understanding and agreement.
2.10 If Overdrive IoT arranges third party service provider(s) to provide services on behalf of CUSTOMER in connection with the Services, CUSTOMER is deemed to have agreed to and accepted all the applicable terms and conditions provided those terms and conditions are reasonably and ordinarily imposed by the service provider(s) and provided that the applicable charges are in accordance with the amount of charges specified in the Order Form. CUSTOMER shall pay Overdrive IoT for any such charges imposed by such service provider(s).
3. Prices
3.1 All prices of IoT Services are set forth in the Order Form. All charges and billing rules are subject to the terms and conditions as stated in the Order Form and Agreement.
3.2 General rules for IoT Services:
a) Billing Period shall be from 00:00:00 AM (Hong Kong Local Time, GMT/UTC +08:00 hour) of the first day of each month to 23:59:59 PM of the last day of each month.
b) Data usage which less than 1MB will be counted as 1MB.
c) Any non-recurring charge or one-off fee will be billed once the Order Form signed by both parties comes into force.
d) Activation of IoT SIM card including “activated upon delivery” and “to be activated” can be selected by CUSTOMER in the Order Form. “Activated upon delivery” means IoT SIM cards are ready for use once they are delivered to CUSTOMER and normal billing model will be applied immediately once the IoT SIM cards are delivered. Whereas “to be activated” offers testing period and/or silent period upon CUSTOMER’s written application and both periods are calculated in calendar month. CUSTOMER will not be charged if IoT Services remain unused in the testing period and/or silent period, whereas once first-time use has been recorded or testing period and/or silent period is expired or testing data is ran out, all IoT SIM cards will be activated automatically and normal billing model will be applied. Testing period and silent period are subject to confirmation by Overdrive IoT upon CSUTOMER’s written application and it must be stated in the Order Form. During testing period, special service fees will be applied and all related fees must be stated in the Order Form.
e) For traffic pool function, each IoT SIM card shall be activated with one service package. Each cycle of traffic pool function is one (1) calendar month in length, and any remaining traffic of that month cannot be carried forward to the next month. Traffic pool function is not applicable during testing period and silent period. When a traffic pool has been built, any change to the size of traffic pool shall correspond with the number of IoT SIM cards subscribed and the service packages subscribed. Once all traffic of the traffic pool has been used, additional traffic will be charged at “Thereafter charge/fee” of corresponding service packages as stated in the Order Form.
f) All IoT Services fees will be charged in full month basis regardless of activation date of the month. There is no pro-rata billing for IoT Services.
3.3 All prices of IoT Services are exclusive of any and all applicable taxes including value added tax (if any), and regulatory surcharges (if any). All taxes will be charged separately in invoices.
3.4 If CUSTOMER is required by law to deduct or withhold any tax, duty or levy from any amounts payable under this Agreement, such amount shall be increased as necessary so that Overdrive IoT receives an amount equal to the sum it would have received without any deduction or withholding. CUSTOMER shall not be liable for any taxes on Overdrive IoT’s income or profits.
3.5 Each Party shall bear its own bank charges imposed by the Party’s bank(s). The intermediate bank charges shall be borne by the account payee.
3.6 If there are any government actions, interference or regulations that generate adverse impacts on the fulfillment of this Agreement during the term, Overdrive IoT reserves the rights to adjust the pricing mechanism of IoT Services accordingly or modify the discount modes, whereas, CUSTOMER can likewise apply for corresponding pricing adjustment to IoT Services or discount modes. The Parties shall negotiate in good faith to reach mutual understanding and agreement.
4. Payment
All fees of the IoT Services month shall be invoiced within sixty (60) days and CUSTOMER has to settle the fees within thirty (30) days of invoice date, whereas if the fees cannot be settled by CUSTOMER within the said time period, Overdrive IoT has the rights to suspend the IoT Services offered to CUSTOMER or to hold shipment of any further orders until payment has been received. If CUSTOMER fails to pay any sum when due or fails to perform under the Order Form or any other agreement with Overdrive IoT after thirty (30) Days’ notice, Overdrive IoT shall be entitled to impose interest on the amount due at 12% per annum. Interest will be calculated from due date. Any queries on invoices must be notified in writing within five (5) working days of the invoice date.
5. Security Requirement
5.1 Overdrive IoT shall be entitled to request CUSTOMER for a deposit as a security requirement as specified in the Order Form. The amount of any deposit will be solely determined by Overdrive IoT. CUSTOMER shall provide such deposit upon execution of the Order Form by both parties.
5.2 The deposit will be deducted by Overdrive IoT for any amount for any loss or damage incurred by Overdrive IoT due to the breach of any terms and conditions of this Agreement by CUSTOMER.
5.3 Any unused portion of the deposit will be returned to CUSTOMER after the termination of this Agreement and after CUSTOMER settles all outstanding charges payable under this Agreement.
6. Delivery
Delivery will take place in accordance with a schedule and in the quantities specified in the Order Form. Overdrive IoT will deliver IoT SIM cards and/or hardware to the address specified in the Order Form using standard packaging (this may not be original packaging) and transportation. Overdrive IoT shall make reasonable effort to meet such required Target Commencement Date but Overdrive IoT shall not accept any liability whatsoever resulting from delay or failure in delivery which is beyond its control.
7. Cancellation
7.1 Without prejudice to Section 8, in the event of cancellation, Overdrive IoT shall be entitled to claim all the fees as set in the Order Form. If CUSTOMER cancels the order less than thirty (30) Days prior to the Target Commencement Date, CUSTOMER shall be liable to pay Overdrive IoT:
a) all payments contractually required to be made and actually made by Overdrive IoT and its subcontractors to a third party as a direct consequence of the cancellation;
b) any other direct actual cost (including reasonable allocation of overhead expenses) that Overdrive IoT incurred or will incur as a direct consequence of the cancellation;
c) one-off installation charge and other non-recurring charge as set forth in the Order Form.
8. Terms and Termination
8.1 The Order Form and Agreement shall commence and remain in force until Services termination. Upon the expiry of the initial contract term, the Services will be renewed on a monthly basis (while NB-IoT service will be renewed on a yearly basis) unless it is terminated by either Party in not less than one (1) month written notice in advance.
8.2 For Services that are terminated prior to the end of the applicable initial contract term, CUSTOMER
a) all unpaid and/or outstanding charges incurred up to and including the date of termination;
b) all monthly service charges that would have been payable for the remainder of the initial contract term;
c) any initial charge or one-off charge waived by Overdrive IoT;
d) any taxes payable by CUSTOMER.
8.3 If any proceedings in bankruptcy, reorganisation, insolvency, liquidation, or receivership are commenced by or against either Party, the other Party may, upon twenty (24) hours written notice, terminate this Agreement with immediate effect.
9. Obligation
9.1 CUSTOMER shall contractually prevent (and termination enforce such contractual provisions) all users from using the IoT Services:
a) for any improper, fraudulent or unlawful purpose;
b) for the transmission of material that contains software viruses or any other disabling or damaging programs;
c) in any way which impairs or damages the network or other relevant platform;
d) for the transmission of open peer to peer communications;
e) for data transmission other than data carried between a device and a user’s defined end point;
f) in a device or application that allows a user to access a publically addressable destination (i.e. public IP address) including through the use of a proxy, tunneling, a gateway or routing. For the avoidance of doubt, this shall not prevent CUSTOMER being able to connect over the internet to a user’s application server;
g) in any way which results in the copying, adaptation, reverse engineering, decompilation, disassemblement, customisation or modification in whole or in part of any software which may be contained in the IoT Services;
h) in any way which would violate copyright, trademark, trade secret or other property rights of any third party;
i) in any way which involves the addition, removal or modification of identifying network header information;
j) in any way which results in spamming or the sending of bulk unsolicited emails or commercial messages.
10. Confidentiality
10.1 The Receiving Party must keep the information marked or otherwise reasonably understood to be confidential or proprietary of Disclosing Party (“Information”) confidential. The Receiving Party shall:
a) use the Information solely for the purpose of pursuing the cooperation;
b) not disclose, publish or disseminate any Information to any third party in any way or form without the prior written consent of the Disclosing Party;
c) treat any Information with the degree of care no less stringent with which it treats its own confidential information of like importance, and in any event taking reasonable precautions for its safe custody;
d) or in part, the Disclosing Party’s Information other than to the extent as may be reasonably necessary for the purpose of pursuing the cooperation, provided that the Receiving Party shall include the Disclosing Party’s proprietary and confidentiality notice on each such copy or reproduced material.
10.2 The obligations under this Section 10 shall not apply to any information which:
a) is in the public domain at the time of its disclosure under this Agreement;
b) comes into the public domain following disclosure under this Agreement otherwise than by an act or omission of the Receiving Party;
c) was in the lawful possession of the Receiving Party prior to and independently of the disclosure by the Disclosing Party under this Agreement free of any restriction as to its use or disclosure prior to it being so disclosed;
d) was developed by or became available to the Receiving Party following disclosure under this Agreement from a source other than the Disclosing Party without incurring any confidentiality obligation. The Party seeking the benefit of the above exception shall bear the burden of proving its existence.
10.3 Notwithstanding the foregoing provisions in this Section 10, each Receiving Party may disclose the Information or the existence or content of this Agreement to its representatives, employees, advisors and its related party who need to know such information in order for the Receiving Party to pursue the cooperation and who are bound to confidentiality obligations either by an agreement or otherwise to the extent not less stringent than the obligations under this Agreement. Any unauthorized use or unauthorized disclosure of the Information or the existence or content of this Agreement by any of the Representatives and Related Party shall constitute a breach of this Agreement by the relevant Receiving Party.
10.4 Notwithstanding the foregoing provisions in this Section 10, the Receiving Party may without liability to the Disclosing Party disclose the Information or the content or existence of this Agreement as required by law, rules or regulations (including, but not limited to, rules or regulations of a stock exchange on which the securities of the Receiving Party or those of Related Party are listed or quoted), order of a relevant court of law or the direction of regulatory authority, provided that before such disclosure and to the extent that it is reasonably practical to do so, the Receiving Party shall first notify the other Parties thereof, give the Disclosing Party an opportunity to obtain a protective order and restrict the disclosure to the extent it is required to do so.
11. Data Protection
11.1 Each Party, when it is the Data Controller (the Party that determines the means and purposes of the processing of Personal Data), shall comply with all the applicable requirements of the Data Protection Legislation including maintaining all necessary notifications.
11.2 When a Party is acting as a Data Processor for other Party, the Data Processor Party shall:
a) process the Personal Data only for the purpose of performing its obligations under this Agreement;
b) inform the other Party of any complaints about, or subject access requests for, the Personal Data processed as part of providing the customer services and provide any information the other Party requires to respond to that request or complaint;
c) take reasonable steps to ensure the reliability of personnel who have access to the Personal Data and ensure that such personnel are aware of the Parties’ obligations, the Data Protection Legislation and have received adequate training and/or instruction on the care and handling of Personal Data;
d) take all appropriate technical and organisational measures in accordance with the Data Protection Legislation and otherwise in accordance with good industry practice against unauthorised or unlawful processing of, and against accidental loss or destruction of, the Personal Data, and in order to maintain the integrity of the Personal Data, including by ensuring a level of security appropriate to: (a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (b) the nature of the Personal Data;
e) promptly notify the other Party about any legally binding request by any law enforcement authority or other governmental body regarding the Personal Data unless legally prohibited from doing so;
f) promptly notify the other Party about any accidental or unauthorised access to the Personal Data;
g) ensure that any subcontractor used by a Party who accesses or receives any Personal Data of an user outside the European Union is either safe harbor certified, accesses or receives such data in a country identified under the EU Data Protection Directive as meeting EU standards for data protection or is subject to the EU Data Protection Directive model clauses in its contract with such Party, and that such subcontractor complies with the terms of this Agreement.
h) comply with all the applicable requirements of the Data Protection Legislation including maintaining all necessary notifications.
i) shall not, and shall ensure that its sub-contractors do not, retain any Personal Data for longer than is necessary for the performance of the Services or as required by applicable law.
11.3 The Parties may authorise third parties or an affiliate or partner of the Party (a “sub-contractor”) to process the Personal Data of authorised users. The Parties shall each ensure that any permitted sub-contractor’s contract contains terms in respect of Data Protection Laws which are substantially the same as those set out in this Agreement.
11.4 The Parties will each ensure that they or any of their respective sub-contractors will not, in respect of Personal Data originating from or held within the European Economic Area (“EEA”), transfer or process the Personal Data outside the EEA, without the prior written consent of the other Party. In respect of any other country from which Personal Data originates or is held, where the Data Protection Laws limit such Personal Data being processed in or transferred to a location outside that country, each Party will ensure that it or any sub-contractor will not transfer or process Personal Data outside that country, without the prior written consent of the other Party. Where consent to processing or transfer of Personal Data outside the EEA or the applicable country is given, each Party will comply with any additional requirements of the CUSTOMER associated with such processing (which may, for the avoidance of doubt, require the Parties to ensure such parties as reasonably specified by CUSTOMER, will enter into the appropriate standard contractual clauses adopted by the European Commission for the transfer of Personal Data outside the applicable jurisdiction).
11.5 Each Party shall maintain the data, records and documents given to it by the other Party and/or created by a Party on the other Party’s behalf (1) that must be maintained for legal, regulatory and other business purposes in connection with the operation of the transferring Party’s business activities (“Official Records”) or (2) in connection with providing the Customer Services (“Party Data”). For the avoidance of doubt, such Official Records and Party Data shall, at all times, remain the property of and subject to the control of the Party who provided them or on whose behalf they were created, and the other Party must immediately notify such Party of any security breach involving such Official Records and/or Party Data. Each Party shall maintain the other Party’s Official Records and Party Data in a readily accessible format and notify the other Party of any security breach and this obligation shall continue following the cessation of activities associated with Official Records and Party Data. Upon request of a Party, the other Party shall certify that the Official Records and Party Data of the other Party have been destroyed pursuant to the applicable retention periods.
12. Information Security
12.1 Overdrive IoT, through itself or the affiliates of Overdrive IoT Pte Ltd, shall have the obligations to provide IoT Services based on the Order Form and the Agreement entered into between the Parties. CUSTOMER must strictly comply with relevant government regulations and will not itself utilize, and will by contract prohibit its end user customers from utilizing, the IoT Services offered by Overdrive IoT to carry out any illegal or criminal activities. CUSTOMER will be fully responsible for the liabilities arising out of a breach by CUSTOMER of its obligations under this Agreement.
12.2 CUSTOMER hereby declares that CUSTOMER will not make use of, and will by contract prohibit its end user customers from using, any IoT Services offered by Overdrive IoT to generate, replicate, publish or disseminate any information related to the following fields:
a) Oppose the basic principles concluded by National Constitution;
b) Endanger national security, disclose state secrets, subvert state power, damage national unity;
c) Harm the national prosperity or benefits;
d) Incite racial hatred or racial discrimination, damage ethnic solidarity; e) Undermine the state religion policies, promote cult religions and superstitions;
f) Disseminate rumors, disrupt social order or social stability;
g) Disseminate obscene, pornographic, gambling, violent, murdering or horrifying information or abet any criminal activities;
h) Insult or slander on others to harm their legitimate interests;
i) Include any information prohibited by regulatory and institutional measures.
12.3 CUSTOMER will not use, and will by contract prohibit its end user customers from using, the IoT Services offered by Overdrive IoT to send spam mails, undertake network attacks or computing system attacks, spread computer viruses or harm internet information security.
12.4 The concrete purposes and scopes of using the IoT Services must be declared by CUSTOMER. Any reselling activities, or changes to scopes or usage due to business needs are not allowed without official consent by Overdrive IoT, or CUSTOMER, if otherwise, shall be responsible for any information security liabilities generated by unauthorized changes to scopes or usage of IoT Services offered by Overdrive IoT.
12.5 CUSTOMER shall be responsible for any information security liabilities resulted by its utilization of the telecommunications resources or Services provided by Overdrive IoT, to offer virtual hosting related Services to third parties. 12.6 CUSTOMER shall endeavor to consolidate the network and information security measures of device or network and protect account information and password. In case of liabilities of information security resulted by embezzlement of account and password, CUSTOMER shall be liable for such incidents.
12.7 Once CUSTOMER violates any provisions of this Agreement or in process of handling the CUSTOMER issue relevant to information security by Overdrive IoT, Overdrive IoT reserves the rights to temporarily suspend the telecommunications resources and Services and/or unilaterally terminate the Agreement.
13. Publicity and Advertising
Neither Party may publish or use any advertising, sales promotions, press releases or other publicity which use the other Party’s name, logo, trademarks or service marks without the prior written approval of the other Party, provided that Overdrive IoT may list CUSTOMER as a user of the IoT Services in Overdrive IoT’s advertising and sales promotion materials.
14. Limitation of Liability
In no event shall either Party be liable for any loss of revenues, profits, contracts or business or failure to realise anticipated savings or indirect or consequential loss or damage suffered by the other Party, provided however, that the limitations of liability provided herein shall not in any way limit or exclude any liability of either Party to the other party for (a) violation of section 10 (Confidentiality), (b) loss or damage resulting from death or personal injury caused by the negligence, (c) fraud or deceit, or (d) any other matter for which liability may not lawfully be excluded.
15. Service Level Agreement
CUSTOMER recognizes that Overdrive IoT does not specify any SLA between the Parties because this Agreement does not contemplate any wholesale supply of Overdrive IoT IoT Services from Overdrive IoT to CUSTOMER. However, each Party will observe operation regulations and actively share the SLA equivalent information for maintaining the quality management and customer satisfaction in pursuing the cooperation hereunder.
16. Force Majeure
In the event of Force Majeure including, but not limited to, earthquake, flood, natural disaster, war, riot, government actions, interference or regulations that may cause the inability to perform any obligations set out in this Agreement, the parties will be exempt from all liabilities and this will not constitute a breach of any provisions of this Agreement.
17. General Provisions
17.1 No Assignment: Neither Party shall assign, delegate or transfer, in whole or in part, any of its rights and/or obligations under this Agreement to any third party without the prior written consent of the other Party.
17.2 No Waiver: No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, and any single or partial exercise by either Party of any right, power or privilege under this Agreement shall not preclude further exercise of such right, power or privilege, nor preclude exercise of any other right, power or privilege available under this Agreement or under any applicable law.
17.3 Severability: If any of the provisions contained in this Agreement shall be declared invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.
17.4 Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior agreements, discussions and understandings with respect to the subject matter hereof. This Agreement may not be amended, changed or modified unless agreed by the Parties in writing.
17.5 Compliance with Laws: Each Party agrees to comply with all applicable laws and regulations, including, but not limited to, laws and regulations relating to the export and/or re-export of technical data, documentation and/or products insofar as they relate to the information disclosed under this Agreement. This Agreement is not construed to permit any of the Parties to offer and provide its services in a foreign country without compliance with local applicable laws and regulations, especially those regarding the necessary licenses to operate and provide telecommunication services.
18. Governing Law and Arbitration
18.1 This Agreement shall be governed by and construed in accordance with the laws of Hong Kong without regard to the principles of its conflict of laws.
18.2 All disputes arising out of or in connection with this Agreement may be referred to and finally resolved by arbitration in accordance with the rules of the International Chamber of Commerce. The arbitration proceedings will be conducted in Hong Kong and the language of the arbitration proceedings will be in English. Each Party shall bear its own fees and costs of arbitration.
19. Definitions
For the purpose and clarification of this Agreement, the following terms shall have the following meanings respectively: “Data Controller” shall have the meaning given in the applicable Data Protection Legislation. “Data Processor” shall have the meaning given in the applicable Data Protection Legislation.
